Non-Discrimination and Equality Under European Union Law

Non-Discrimination and Equality Under European Union Law

1. Introduction

Equality and non-discrimination are fundamental principles of the European Union’s constitutional and legal order. They express the idea that individuals must enjoy equal legal protection and that public authorities, employers and other organisations subject to EU equality legislation must not disadvantage people on prohibited grounds.

The principle of equality has developed from an important economic and social objective into a central component of EU fundamental-rights law. Originally, European integration placed particular emphasis on equal treatment between men and women in employment, especially equal pay. Over time, the Treaties, the Charter of Fundamental Rights and a substantial body of secondary legislation expanded the protection to additional grounds, including racial or ethnic origin, religion or belief, disability, age and sexual orientation.

The legal framework is not contained in one comprehensive equality statute. Instead, it consists of several Treaty provisions, the Charter of Fundamental Rights, sector-specific directives and principles developed through the case law of the Court of Justice of the European Union (CJEU).

This structure is important because the scope of protection differs according to the discrimination ground and the legal context. Racial or ethnic discrimination is prohibited across a relatively broad range of activities, including employment, education, social protection and access to goods and services. Discrimination based on religion, disability, age or sexual orientation is principally regulated by EU law in employment and occupation. Gender equality has its own extensive framework covering employment, pay, social security, self-employment and certain goods and services.

EU equality law also distinguishes between direct discrimination, indirect discrimination, harassment, instructions to discriminate and victimisation. It recognises that apparently neutral rules may produce unequal outcomes and that equal treatment sometimes requires reasonable accommodation or carefully designed positive measures.

The legal significance of equality extends beyond individual claims. It affects recruitment, remuneration, professional advancement, access to education, public services, commercial transactions and the organisation of institutions. It also influences the interpretation of EU legislation and the responsibilities of Member States.

Understanding this framework requires examining the constitutional foundations of equality, the different protected grounds, the principal directives, the CJEU’s case law and the mechanisms available to individuals seeking protection.

2. Constitutional foundations: Articles 2, 3 and 10 TEU

The principle of equality is embedded in the constitutional foundations of the European Union.

Article 2 TEU identifies equality as one of the values on which the Union is founded, alongside human dignity, freedom, democracy, the rule of law and respect for human rights.

This provision gives equality a constitutional dimension. It is not merely a policy objective or a technical requirement of employment legislation. It forms part of the values that define the Union and its relationship with individuals and Member States.

Article 3(3) TEU further provides that the Union shall combat social exclusion and discrimination and promote social justice, equality between women and men, solidarity between generations and the protection of children’s rights.

Article 10 TFEU introduces an important principle of policy integration. In defining and implementing its policies and activities, the Union must aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

This provision is significant because it requires equality considerations to be incorporated into the development and implementation of EU policies. Non-discrimination is therefore not confined to a separate area of legislation. It is a consideration relevant to the exercise of Union powers more generally.

The constitutional framework is supplemented by Article 19 TFEU, which provides a legal basis for EU legislative action against discrimination.

Article 19(1) authorises the Council, acting unanimously under a special legislative procedure and after obtaining the consent of the European Parliament, to adopt appropriate measures to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

Article 19(2) provides a separate basis for adopting basic principles of EU incentive measures, excluding harmonisation of Member State laws and regulations.

These provisions establish an important distinction between the recognition of equality as a foundational value and the legislative competence required to regulate particular forms of discrimination.

The EU cannot legislate in every area merely because a measure concerns equality. It must act within the powers conferred by the Treaties and respect the specific legal basis and procedural requirements applicable to the proposed legislation.

3. Equality before the law and the principle of equal treatment

Equality before the law and non-discrimination are closely related, but they are not identical.

Equality before the law generally requires that comparable situations be treated alike and that materially different situations not be treated identically without adequate justification.

The principle does not prohibit every difference in treatment. It prohibits differences that lack an objective and legally acceptable justification.

For example, a public authority may establish different regulatory requirements for businesses operating in materially different circumstances. Such differentiation is not necessarily discriminatory. The relevant question is whether the distinction is based on objective criteria and pursues a legitimate purpose through proportionate means.

Conversely, treating everyone identically may sometimes produce unequal results. A rule requiring all employees to perform a task in precisely the same manner may disadvantage a worker with a disability where a reasonable adjustment would allow that person to perform the essential functions of the position.

Equality law therefore involves more than formal uniformity.

The CJEU has consistently recognised the principle of equal treatment as a general principle of EU law. It has also developed the requirement that comparable situations must not be treated differently and different situations must not be treated alike unless the distinction is objectively justified.

The analysis normally involves three questions:

1. Are the persons or situations being compared objectively comparable?
2. Has one person or group been treated less favourably than another?
3. If a difference in treatment exists, is it justified by a legitimate objective and proportionate means?

The precise legal test depends on the applicable provision and discrimination ground. Some distinctions are prohibited directly by legislation, while others may be justified under carefully defined conditions.

The principle of equal treatment is particularly important in employment, where differences in remuneration, recruitment, promotion and working conditions may require examination against objective and consistently applied criteria.

4. Article 18 TFEU and discrimination based on nationality

Article 18 TFEU prohibits discrimination on grounds of nationality within the scope of application of the Treaties, without prejudice to any special provisions contained in them.

The provision is closely connected with the free movement of persons and the principle that EU citizens should not be treated less favourably because they are nationals of another Member State when exercising rights protected by EU law.

For example, a Member State generally cannot impose nationality-based restrictions on workers from other Member States in areas governed by the free movement provisions, unless a specific Treaty exception applies.

Article 18 is not an unlimited prohibition of every nationality distinction in domestic law. It applies within the scope of EU law and operates alongside more specific provisions.

Article 45 TFEU, for example, prohibits nationality discrimination between workers of Member States in relation to employment, remuneration and other conditions of work and employment.

The free movement framework also includes Regulation (EU) No 492/2011, which establishes detailed rules concerning equal treatment of migrant workers.

Article 18 must therefore be understood as a general Treaty provision operating within the broader system of EU citizenship and free movement.

It should also be distinguished from the discrimination grounds listed in Article 19 TFEU. Nationality is not one of the six grounds enumerated in Article 19(1). Its protection is principally developed through the citizenship and internal-market provisions.

This distinction matters because EU equality law does not apply one identical legislative framework to every possible form of unequal treatment.

5. The Charter of Fundamental Rights: Articles 20, 21 and 23

The Charter of Fundamental Rights provides the principal written catalogue of equality-related rights within EU law.

Three provisions are particularly important.

5.1 Article 20: Equality before the law

Article 20 provides that everyone is equal before the law.

It expresses a general principle of legal equality and applies within the scope of the Charter.

Its wording is broad and is not restricted to the specific discrimination grounds enumerated elsewhere in EU legislation.

Article 20 must nevertheless be interpreted in the context of the Charter as a whole and the limits imposed by Article 51.

5.2 Article 21: Non-discrimination

Article 21 contains a more specific prohibition of discrimination.

It prohibits discrimination on grounds including:

• Sex.
• Race.
• Colour.
• Ethnic or social origin.
• Genetic features.
• Language.
• Religion or belief.
• Political or other opinion.
• Membership of a national minority.
• Property.
• Birth.
• Disability.
• Age.
• Sexual orientation.

Article 21(2) separately prohibits discrimination on grounds of nationality within the scope of application of the Treaties and without prejudice to their specific provisions.

The list in Article 21 is broader than the six grounds expressly mentioned in Article 19(1) TFEU.

This distinction is significant. The Charter establishes a broad fundamental-rights standard, but the existence of a Charter right does not automatically mean that the Union has legislative competence to regulate every form of discrimination in every field.

5.3 Article 23: Equality between women and men

Article 23 requires equality between women and men to be ensured in all areas, including employment, work and pay.

It also expressly permits the maintenance or adoption of measures providing specific advantages in favour of the under-represented sex.

This provision recognises that achieving substantive equality may require measures addressing structural disadvantages rather than merely prohibiting explicit unequal treatment.

5.4 The Charter’s scope

Article 51 determines when the Charter applies.

EU institutions, bodies, offices and agencies must respect the Charter in all their activities.

Member States are bound by the Charter when they are implementing EU law or otherwise acting within its scope.

The Charter does not apply automatically to every national dispute involving equality. A purely domestic matter with no sufficient connection to EU law does not become subject to the Charter simply because it concerns discrimination.

However, national constitutions, domestic equality legislation and the European Convention on Human Rights may independently provide protection.

The distinction between the Charter’s scope and the wider application of national equality law is essential when assessing a particular claim.

The full text is available in the Charter of Fundamental Rights of the European Union.

6. Article 19 TFEU and the principal EU discrimination grounds

Article 19 TFEU identifies six grounds on which the Union may adopt measures to combat discrimination:

1. Sex.
2. Racial or ethnic origin.
3. Religion or belief.
4. Disability.
5. Age.
6. Sexual orientation.

These grounds form the foundation of the EU’s principal anti-discrimination directives.

However, the legal protection is not identical for every ground.

The Racial Equality Directive provides particularly broad protection, covering employment, vocational training, education, social protection, healthcare and access to goods and services, including housing.

The Employment Equality Directive focuses on employment and occupation and covers religion or belief, disability, age and sexual orientation.

Gender equality is addressed through a number of separate instruments, including legislation concerning employment, equal pay, social security, self-employment and access to goods and services.

The difference in scope reflects the historical development of EU equality legislation and the specific Treaty legal bases used to adopt it.

It is therefore incorrect to assume that every discrimination ground is protected by every EU equality directive in all areas of social and economic life.

7. Direct discrimination

Direct discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation because of a protected characteristic.

The comparison may involve an actual person, a previous situation or a hypothetical comparator.

For example, an employer who refuses to recruit a qualified applicant because of the applicant’s ethnic origin may engage in direct discrimination.

Similarly, an employer who pays a woman less than a male colleague for the same work because of sex may violate the principle of equal pay.

Direct discrimination generally requires a connection between the protected ground and the less favourable treatment. It is not necessary for the person responsible to admit discriminatory intent. The legal assessment focuses on the treatment and its connection with the protected characteristic.

The comparison must be made in the context of the relevant legal framework. The circumstances do not always have to be identical, but they must be sufficiently comparable for the difference in treatment to be legally meaningful.

7.1 The genuine occupational requirement

EU equality law recognises limited circumstances in which a difference in treatment based on a protected characteristic may be justified.

Under Article 4 of Directive 2000/78/EC, a characteristic related to a protected ground may constitute a genuine and determining occupational requirement where, by reason of the nature of the particular occupational activities or the context in which they are carried out, the characteristic is essential and the objective is legitimate and the requirement proportionate.

This exception must be interpreted narrowly.

An employer cannot rely on customer preferences, stereotypes or general assumptions to justify discriminatory recruitment practices.

For example, a requirement connected with the portrayal of a particular character in a theatrical performance may be capable of satisfying the occupational-requirement test in circumstances where the characteristic is genuinely essential to the artistic role. A general preference for employees of a particular sex or ethnic origin would not ordinarily satisfy the same standard.

7.2 Religious organisations

EU law also recognises limited exceptions concerning occupational activities within churches and other organisations whose ethos is based on religion or belief.

Article 4(2) of Directive 2000/78/EC allows certain differences in treatment where religion or belief constitutes a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos.

The exception does not give religious organisations unlimited authority to discriminate.

The requirement must be objectively justified in light of the nature of the activities and the circumstances in which they are carried out. It must also be proportionate and subject to effective judicial review.

The CJEU examined these questions in Egenberger (C-414/16), emphasising that national courts must be able to review whether the asserted occupational requirement satisfies the conditions imposed by EU law.

8. Indirect discrimination

Indirect discrimination occurs where an apparently neutral provision, criterion or practice places persons sharing a protected characteristic at a particular disadvantage compared with others.

Unlike direct discrimination, the rule does not expressly distinguish between people on a prohibited ground. Its discriminatory character arises from its practical effect.

Indirect discrimination is particularly important because discrimination may be embedded in institutional practices that appear neutral when considered in isolation.

For example, an employer may establish a recruitment requirement that applicants must have uninterrupted full-time employment histories over a specified period. Although the criterion applies to everyone, it may disproportionately disadvantage women who have taken periods away from employment because of childcare responsibilities.

The requirement may constitute indirect discrimination based on sex if the disadvantage is established and the employer cannot demonstrate an objective justification.

The general test requires examination of:

• The apparently neutral provision, criterion or practice.
• The particular disadvantage experienced by a protected group.
• The existence of an objective justification.
• Whether the means used are appropriate and necessary to achieve a legitimate aim.

The concept of objective justification is important. Not every statistical difference or group disadvantage automatically establishes unlawful discrimination.

An employer or public authority may sometimes justify a neutral measure by demonstrating a legitimate objective and showing that the measure is appropriate and necessary to achieve it.

The assessment must be substantive rather than purely formal. A measure cannot be justified simply by describing it as efficient, convenient or customary.

In Bilka-Kaufhaus (Case 170/84), the CJEU examined an occupational pension scheme that excluded part-time employees. The Court held that a measure which placed women at a particular disadvantage could constitute indirect sex discrimination unless it was objectively justified by factors unrelated to sex.

The judgment established an important approach to examining apparently neutral employment conditions.

9. Harassment, instructions to discriminate and victimisation

EU equality legislation recognises several forms of prohibited conduct beyond direct and indirect discrimination.

9.1 Harassment

Harassment related to a protected characteristic constitutes discrimination where unwanted conduct has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment.

The assessment considers the nature and context of the conduct, its purpose or effect and the circumstances of the person affected.

Harassment may occur in employment, education or other areas covered by the relevant directive.

Examples include persistent racial insults, degrading remarks about a colleague’s disability, sexualised conduct in the workplace or repeated hostile treatment connected with a person’s religion.

The legal concept is not limited to conduct involving physical contact or explicit threats. Repeated verbal behaviour and other forms of unwanted conduct may also qualify.

9.2 Instructions to discriminate

EU law prohibits instructions to discriminate against persons on protected grounds.

An employer or organisation cannot avoid responsibility by arguing that the discriminatory decision was made by someone acting under instructions.

For example, an instruction from a business owner to an employment agency not to refer applicants from a particular ethnic group may fall within the prohibition.

The CJEU’s judgment in Feryn (C-54/07) illustrates the significance of public discriminatory statements.

The case concerned an employer who publicly declared that it would not recruit persons of a particular ethnic origin because customers did not wish to deal with them.

The Court held that such statements could constitute direct discrimination in recruitment even where no identified individual had established that an application had been submitted and rejected.

The judgment demonstrates that equality law can address discriminatory recruitment policies before an individual employment relationship is established.

9.3 Victimisation

Victimisation occurs where a person suffers adverse treatment because they have made a complaint, brought proceedings or participated in a procedure intended to enforce equality rights.

For example, an employer who dismisses an employee because the employee supported a colleague’s discrimination complaint may engage in prohibited victimisation.

The purpose of this protection is to ensure that individuals can exercise their equality rights without fear of retaliation.

Without protection against victimisation, formal rights to complain or seek judicial remedies would be substantially weakened.

10. The principal EU equality directives

The EU’s anti-discrimination framework is implemented through several directives, each with its own legal scope.

10.1 Directive 2000/43/EC: The Racial Equality Directive

The Racial Equality Directive implements the principle of equal treatment between persons irrespective of racial or ethnic origin.

It prohibits direct and indirect discrimination, harassment and instructions to discriminate.

Its scope extends beyond employment. It covers:

• Access to employment and self-employment.
• Vocational training.
• Employment and working conditions.
• Membership of professional organisations.
• Education.
• Social protection, including social security and healthcare.
• Social advantages.
• Access to and supply of goods and services available to the public, including housing.

This broad scope makes the Directive one of the most comprehensive instruments in EU anti-discrimination law.

It does not, however, regulate every possible distinction connected with nationality or migration status. The Directive expressly concerns racial or ethnic origin, and its scope must be interpreted according to its provisions and the relevant case law.

Article 5 permits Member States to maintain or adopt specific measures intended to prevent or compensate for disadvantages linked to racial or ethnic origin, provided that they comply with EU law.

The Directive also establishes important procedural guarantees, including access to judicial or administrative procedures, rules on the burden of proof and protection against victimisation.

Official text: Directive 2000/43/EC.

10.2 Directive 2000/78/EC: The Employment Equality Directive

Directive 2000/78/EC establishes a general framework for equal treatment in employment and occupation.

It prohibits discrimination based on:

• Religion or belief.
• Disability.
• Age.
• Sexual orientation.

Its scope includes access to employment and self-employment, vocational guidance, recruitment, promotion, vocational training, working conditions, remuneration and dismissal.

The Directive applies to both the public and private sectors, subject to its provisions and permitted exceptions.

It recognises direct and indirect discrimination, harassment and instructions to discriminate.

A particularly important feature is its treatment of disability. Employers must provide reasonable accommodation for persons with disabilities unless doing so would impose a disproportionate burden.

The Directive also contains specific rules concerning occupational requirements and limited justifications for differences in treatment based on age.

The age-related provisions are especially important because EU law does not prohibit every distinction based on age. A difference in treatment may be justified where it pursues a legitimate objective, particularly in employment policy, labour-market or vocational-training contexts, and the means of achieving that objective are appropriate and necessary.

Official text: Directive 2000/78/EC.

10.3 Directive 2006/54/EC: Gender Equality in Employment

Directive 2006/54/EC consolidates important EU rules on equal opportunities and equal treatment between women and men in employment and occupation.

It addresses equal pay, equal treatment in occupational social security schemes, access to employment, vocational training, promotion and working conditions.

The Directive also recognises the prohibition of discrimination connected with pregnancy and maternity.

Its provisions must be read alongside Article 157 TFEU, which establishes the principle of equal pay for male and female workers for equal work or work of equal value.

The Directive also provides procedural safeguards and rules concerning compensation, burden of proof and protection against victimisation.

Official text: Directive 2006/54/EC.

10.4 Directive 2004/113/EC: Gender Equality in Goods and Services

Directive 2004/113/EC applies the principle of equal treatment between women and men to access to and the supply of goods and services available to the public.

It covers goods and services offered outside the area of private and family life and transactions carried out in that context.

The Directive prohibits direct and indirect discrimination based on sex, subject to its specific provisions and exceptions.

It also addresses the use of sex as a factor in insurance and related financial services.

In Association belge des Consommateurs Test-Achats (C-236/09), the CJEU invalidated the provision that had permitted Member States to allow proportionate differences in individual insurance premiums and benefits based on sex where sex was a determining risk factor.

The Court held that the derogation was incompatible with the principle of equal treatment and could not continue indefinitely.

The judgment demonstrates that apparently technical commercial practices, including actuarial calculations, remain subject to fundamental equality requirements.

Official text: Directive 2004/113/EC.

10.5 Directive 2010/41/EU: Self-Employed Workers

Directive 2010/41/EU applies the principle of equal treatment between women and men engaged in self-employed activities.

It addresses access to self-employment, establishment of businesses, conditions for setting up a business, social protection and maternity-related rights.

The Directive recognises that gender equality must extend beyond traditional employment relationships.

Its significance lies in the fact that self-employed persons may experience discrimination in access to business opportunities, professional support and social protection.

Official text: Directive 2010/41/EU.

10.6 Directive 79/7/EEC: Equal Treatment in Statutory Social Security

Directive 79/7/EEC concerns the progressive implementation of equal treatment between women and men in matters of social security.

It applies to statutory schemes providing protection against specified risks, including sickness, invalidity, old age, accidents at work, occupational diseases and unemployment.

It does not cover every form of social protection. Occupational pension schemes and certain other arrangements are addressed through different legal instruments.

The Directive prohibits direct and indirect discrimination in its field of application, subject to the exceptions and transitional arrangements contained in its provisions.

Official text: Directive 79/7/EEC.

11. Equal pay for equal work and work of equal value

Equal pay is one of the oldest and most developed areas of EU equality law.

Article 157(1) TFEU requires each Member State to ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

The provision is particularly important because it has direct legal consequences and can be invoked in appropriate circumstances before national courts.

Equal pay is not restricted to employees performing identical tasks. It also covers work of equal value.

Two positions may involve different responsibilities or professional activities but still be comparable in terms of the demands placed on workers.

The assessment may consider:

• Skills and qualifications.
• Physical and intellectual effort.
• Responsibility.
• Working conditions.
• Other relevant characteristics of the work.

The central issue is whether the difference in remuneration is based on objective, gender-neutral factors rather than sex.

In Defrenne v Sabena (Case 43/75), the CJEU confirmed the direct effect of the equal-pay provision in the Treaty in relevant circumstances.

The case concerned a female airline employee who argued that she had been paid less favourably than male colleagues.

The Court recognised that the equal-pay principle could be relied upon before national courts, including in disputes involving private employers, where the Treaty requirements were satisfied.

The judgment was a major development in EU equality law because it established that the Treaty principle was not merely a political commitment addressed to Member States.

11.1 Directive 2023/970: Pay Transparency

Directive (EU) 2023/970 strengthens the application of equal pay for equal work or work of equal value through transparency and enforcement mechanisms.

Its purpose is to address structural obstacles that make pay discrimination difficult to identify.

The Directive introduces several important requirements.

Employers must provide applicants with information about the initial pay or pay range for a position before the employment relationship is concluded. Employers must not ask applicants about their pay history.

Workers must have access to information about their individual pay level and average pay levels, broken down by sex, for categories of workers performing the same work or work of equal value.

Employers must also establish objective and gender-neutral criteria for determining pay levels and pay progression.

The Directive introduces pay-gap reporting obligations for employers according to workforce size.

Where reporting identifies a gender pay gap of at least 5% in a category of workers that cannot be justified by objective, gender-neutral criteria, and the employer has not remedied the difference within the prescribed period, a joint pay assessment may be required.

The Directive also strengthens procedural protection, including access to compensation and the rules governing the burden of proof.

Member States were required to transpose the Directive by 7 June 2026. That deadline has passed as of November 2026, and the Commission is assessing national implementation and conformity.

The Directive represents a significant development because it moves equality enforcement beyond the traditional model in which an individual worker must first discover and prove that unequal pay exists.

Official text: Directive (EU) 2023/970.

12. Disability discrimination and reasonable accommodation

Disability discrimination requires particular attention because equal treatment may demand adjustments to existing arrangements.

Directive 2000/78/EC recognises that employers must take appropriate measures, where needed in a particular case, to enable a person with a disability to access, participate in or advance in employment, or undergo training.

This obligation is known as reasonable accommodation.

It may involve adjustments to:

• Working hours.
• Workplace facilities.
• Equipment and technology.
• Allocation of duties.
• Communication arrangements.
• Training and assessment methods.
• Physical access to the workplace.

The obligation is subject to the condition that the measures do not impose a disproportionate burden on the employer.

When assessing whether a burden is disproportionate, relevant considerations may include the financial and other costs, the size and resources of the organisation and the availability of public funding or other assistance.

The duty is individual in character. It requires consideration of the particular person’s circumstances and the practical adjustments that may enable participation.

The CJEU has interpreted disability broadly in light of the EU’s obligations under the United Nations Convention on the Rights of Persons with Disabilities.

In HK Danmark (Joined Cases C-335/11 and C-337/11), the Court considered the relationship between disability, long-term illness and working time arrangements.

It held that the concept of disability under EU law can include a long-term limitation resulting from physical, mental or psychological impairments which, in interaction with various barriers, may hinder full and effective participation in professional life on an equal basis with other workers.

The Court also examined the obligation to provide reasonable accommodation and the possibility that adjustments to working hours could constitute such accommodation.

In Coleman (C-303/06), the Court recognised that direct discrimination and harassment under the Employment Equality Directive may occur where an employee is treated unfavourably because of their association with a person with a disability.

The judgment is significant because it confirms that protection is not necessarily limited to individuals who personally possess the protected characteristic.

13. Positive action and substantive equality

EU equality law does not require all individuals to be treated identically in every circumstance.

Sometimes, targeted measures are necessary to address established disadvantages experienced by particular groups.

This approach is commonly described as positive action.

Article 157(4) TFEU permits measures providing specific advantages to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.

Article 23 of the Charter similarly recognises that the principle of equality between women and men does not prevent the maintenance or adoption of measures providing specific advantages in favour of the under-represented sex.

Positive action is not equivalent to an unrestricted entitlement to prefer one person over another solely because of a protected characteristic.

The CJEU has developed limits designed to reconcile positive measures with individual rights and the principle of equal treatment.

In Kalanke (C-450/93), the Court rejected an automatic and unconditional preference for women where women and men were equally qualified, because the arrangement went beyond the permissible limits of positive action under the applicable EU framework.

In Marschall (C-409/95), however, the Court accepted a system providing preference to equally qualified women where a safeguard allowed objective assessment of all individual circumstances and prevented automatic priority.

The distinction is important. Positive action may be permissible where it addresses under-representation and remains proportionate, but an inflexible preference system may violate equal-treatment requirements.

Positive action is therefore designed to improve genuine equality of opportunity rather than replace one form of automatic discrimination with another.

14. Intersectional discrimination

Discrimination does not always occur on a single ground.

An individual may experience disadvantage resulting from the interaction of several characteristics, such as sex and racial or ethnic origin, disability and age, or religion and gender.

This is commonly described as intersectional discrimination.

Traditional legal frameworks have often examined discrimination by reference to one protected ground at a time. This can make complex situations difficult to analyse.

For example, a woman from a particular ethnic minority may experience treatment that is not adequately explained by examining sex discrimination or racial discrimination separately.

EU legislation increasingly recognises the importance of considering combined disadvantages.

The 2024 directives on standards for equality bodies expressly refer to intersectional discrimination in relevant contexts and require attention to situations involving combinations of protected grounds.

Nevertheless, EU equality law does not yet operate through one comprehensive horizontal instrument covering all protected characteristics across every area of social and economic life.

The legal assessment of an intersectional claim therefore depends on the applicable directive, the relevant national implementing legislation and the available judicial interpretation.

The recognition of intersectionality is important because equality analysis must be capable of examining the actual circumstances in which disadvantage occurs rather than forcing every claim into an artificially isolated category.

15. The burden of proof and procedural protection

A central difficulty in discrimination cases is access to evidence.

A person may know that they have been treated less favourably but have no direct access to the employer’s recruitment records, internal correspondence, pay data or decision-making criteria.

EU equality directives therefore establish special rules concerning the burden of proof.

Under the relevant provisions, where a claimant establishes facts from which it may be presumed that discrimination has occurred, it is for the respondent to prove that the principle of equal treatment has not been breached.

This does not mean that the claimant has no evidential responsibility.

The claimant must first establish facts capable of supporting a presumption of discrimination. Once that threshold is met, the burden shifts to the respondent to demonstrate that no breach occurred.

The precise operation of the rule is governed by the relevant directive and national procedural law.

For example, statistical evidence may be important in indirect discrimination cases. A claimant may demonstrate that an apparently neutral requirement disproportionately disadvantages a protected group.

In recruitment cases, discriminatory public statements may also be relevant evidence, as demonstrated by Feryn.

The CJEU’s judgment in Danfoss (Case 109/88) is an important early example involving unequal pay and a lack of transparency in remuneration arrangements. The Court recognised that where a pay system was completely lacking in transparency and statistical evidence demonstrated a significant difference in pay, the employer could be required to establish that its practices were not discriminatory.

15.1 Access to remedies

The directives require Member States to provide judicial or administrative procedures through which individuals can enforce their rights.

These procedures must remain available even after the relationship in which the alleged discrimination occurred has ended.

For example, a former employee may still bring proceedings concerning discriminatory dismissal or unequal remuneration, subject to applicable limitation periods.

Associations and organisations may also be permitted to participate in proceedings on behalf of or in support of complainants, in accordance with national law and the relevant directive.

15.2 Compensation and sanctions

Member States must provide effective, proportionate and dissuasive sanctions for breaches of equality legislation.

The remedies must be capable of providing genuine protection rather than merely formal recognition of the right.

In appropriate circumstances, compensation may include financial loss and non-material damage.

The precise rules governing compensation, limitation periods and procedural arrangements are generally determined by national law, subject to the EU principles of equivalence and effectiveness.

The principle of equivalence requires that claims based on EU law are not treated less favourably than comparable domestic claims.

The principle of effectiveness requires that national procedures do not make the exercise of EU rights impossible or excessively difficult.

16. Equality bodies and the 2024 directives

Equality bodies play an important role in preventing discrimination and supporting individuals who believe their rights have been violated.

Their functions may include:

• Providing independent assistance to victims.
• Conducting surveys and research.
• Publishing reports and recommendations.
• Promoting equality and preventing discrimination.
• Supporting dialogue between public authorities and civil society.
• Participating in legal proceedings where national law permits.
• Providing information and guidance to employers, organisations and individuals.

The EU adopted two important directives in 2024 to strengthen the functioning of these institutions.

Directive (EU) 2024/1499 establishes standards for equality bodies in relation to racial or ethnic origin, religion or belief, disability, age, sexual orientation and specified areas of gender equality.

Directive (EU) 2024/1500 establishes standards for equality bodies in the field of equal treatment and equal opportunities between women and men in employment and occupation.

The directives seek to improve the independence, resources, accessibility and effectiveness of equality bodies.

They also address the availability of assistance to victims, the provision of information, the ability to conduct inquiries and the institutional conditions necessary for independent performance of their functions.

The transposition deadline for both directives was 19 June 2026. Their implementation is therefore a current part of the development of national equality institutions.

These instruments do not create a single European equality authority replacing national bodies. Rather, they establish minimum standards intended to strengthen the national institutions responsible for implementing EU equality law.

Official texts:

• Directive (EU) 2024/1499.
• Directive (EU) 2024/1500.

17. The CJEU’s role in developing equality law

The Court of Justice has played a central role in the development of EU equality law.

Its judgments have clarified the meaning of direct and indirect discrimination, established the legal effects of Treaty provisions, interpreted the scope of protected characteristics and developed the relationship between equality and fundamental rights.

Several cases are particularly important.

17.1 Defrenne v Sabena, Case 43/75

The Court recognised the direct effect of the Treaty principle of equal pay in appropriate circumstances.

The judgment established that the principle could be relied upon before national courts, including in disputes involving private employers.

It transformed equal pay from a broad Treaty objective into an enforceable individual right.

17.2 Bilka-Kaufhaus, Case 170/84

The Court examined an occupational pension arrangement that disadvantaged part-time workers.

It established that an apparently neutral measure may constitute indirect sex discrimination where it places women at a particular disadvantage, unless the measure is objectively justified by factors unrelated to sex.

17.3 Kalanke, Case C-450/93

The Court examined an automatic preference for equally qualified women in professional advancement.

It held that the particular arrangement exceeded the permissible limits of positive action.

The case established that measures intended to promote equality must remain within the proportionality requirements of EU law.

17.4 Marschall, Case C-409/95

The Court accepted a preference for equally qualified women where the system included an individual assessment safeguard.

The judgment clarified that positive action may be lawful where it addresses under-representation without creating an automatic and unconditional preference.

17.5 Mangold, Case C-144/04

The Court recognised the prohibition of age discrimination as a general principle of EU law.

The judgment was particularly significant because it confirmed that the principle could have legal consequences even before the expiry of the deadline for implementing Directive 2000/78/EC in the circumstances of the case.

It contributed to the development of the constitutional status of equality within EU law.

17.6 Kücükdeveci, Case C-555/07

The Court developed the principle recognised in Mangold.

It held that national courts must ensure the effectiveness of the general principle prohibiting age discrimination and, where necessary, disapply conflicting national legislation in disputes falling within the scope of EU law.

The judgment illustrates the interaction between fundamental principles, directives and the primacy of EU law.

17.7 Feryn, Case C-54/07

The Court recognised that public statements expressing an intention not to recruit people of a particular racial or ethnic origin could constitute direct discrimination.

The judgment confirmed that discriminatory recruitment practices may be challenged even where no individual applicant has been identified as the direct victim.

17.8 Coleman, Case C-303/06

The Court recognised that discrimination and harassment may occur because of a person’s association with someone possessing a protected characteristic.

The case concerned an employee who experienced unfavourable treatment connected with her son’s disability.

The judgment confirmed that the protection of the Employment Equality Directive is not limited to discrimination against persons who personally possess the relevant characteristic.

17.9 CHEZ, Case C-83/14

The Court examined the installation of electricity meters at a height that made them difficult to access in a predominantly Roma neighbourhood.

It considered the concept of discrimination based on ethnic origin and the possibility of protection for a person who did not personally belong to the affected ethnic group but experienced the consequences of the discriminatory practice.

The judgment also developed the analysis of indirect discrimination and objective justification.

17.10 Egenberger, Case C-414/16

The Court examined the conditions under which a religious organisation may require a particular religious affiliation for a position.

It held that the occupational requirement must be genuine, legitimate and justified in light of the organisation’s ethos and the nature of the activities.

National courts must be able to review whether the conditions imposed by EU law are satisfied.

Together, these judgments demonstrate that equality law is a dynamic field shaped by the interaction between Treaty provisions, legislation, fundamental rights and judicial interpretation.

18. The limits of EU equality law and the proposed horizontal Equal Treatment Directive

Despite the extensive framework already in place, EU anti-discrimination legislation does not provide identical protection across all grounds and areas of activity.

The principal difference concerns the scope of protection for religion or belief, disability, age and sexual orientation.

Under Directive 2000/78/EC, these grounds are protected principally in employment and occupation.

By contrast, Directive 2000/43/EC extends protection against racial or ethnic discrimination to education, social protection and access to goods and services.

The European Commission proposed a broader Equal Treatment Directive in 2008. Its purpose was to extend protection against discrimination based on religion or belief, disability, age and sexual orientation beyond employment into areas such as social protection, education and access to goods and services.

The proposal has not been adopted. It remains an example of the difficulty of achieving unanimity in the Council on legislation under Article 19 TFEU.

The absence of a comprehensive horizontal directive means that the scope of protection continues to depend substantially on the protected ground and the relevant legislative instrument.

This does not mean that individuals are left without protection outside the scope of EU equality directives. National constitutions, domestic equality legislation, the European Convention on Human Rights and other international obligations may provide broader safeguards.

However, the difference in the scope of EU legislation remains a significant feature of the current legal framework.

19. The practical application of EU equality law

The legal principles discussed above have direct consequences for employers, service providers, educational institutions and public authorities.

An organisation operating within the scope of EU equality legislation should consider discrimination risks throughout its decision-making processes.

Recruitment procedures should use objective criteria related to the requirements of the position. Job advertisements should not exclude applicants through discriminatory language or assumptions.

Remuneration systems should be transparent and based on objective criteria. Employers must be able to explain differences in pay and demonstrate that they do not result from unlawful discrimination.

Promotion and performance assessment procedures should apply consistent standards and avoid criteria that disadvantage protected groups without objective justification.

Employers must also consider reasonable accommodation where disability is involved.

Service providers should ensure that access to goods and services is not restricted on prohibited grounds where the relevant legislation applies.

Educational institutions must comply with the applicable equality requirements, particularly those concerning racial or ethnic discrimination.

Public authorities must ensure that their decisions comply with EU equality obligations whenever they act within the scope of relevant EU law.

The practical analysis of an alleged breach should begin by identifying the applicable legal instrument.

The relevant questions are:

1. What is the protected characteristic?
2. Does the situation fall within the scope of EU law?
3. Which Treaty provision, directive or Charter right applies?
4. Does the conduct amount to direct discrimination, indirect discrimination, harassment, victimisation or another prohibited practice?
5. Is a legally recognised justification or exception available?
6. What evidence and procedural remedies are available under national law?

This approach is important because a discrimination claim cannot be assessed accurately by relying only on the general statement that equality is protected under EU law.

The specific ground, legal context and applicable instrument determine the rights and remedies available.

20. Key Takeaways

• Equality and non-discrimination are foundational values of the European Union under Article 2 TEU.
• Article 3(3) TEU and Article 10 TFEU require equality considerations to be integrated into Union policies and activities.
• Article 19 TFEU provides a legal basis for combating discrimination on six specified grounds.
• Article 18 TFEU separately prohibits nationality discrimination within the scope of the Treaties.
• Articles 20, 21 and 23 of the Charter protect equality before the law, non-discrimination and equality between women and men.
• The Charter binds EU institutions generally and Member States when they act within the scope of EU law.
• Direct discrimination involves less favourable treatment because of a protected characteristic.
• Indirect discrimination arises where an apparently neutral rule places a protected group at a particular disadvantage without adequate objective justification.
• EU equality law also prohibits harassment, instructions to discriminate and victimisation.
• Directive 2000/43/EC provides broad protection against racial and ethnic discrimination.
• Directive 2000/78/EC protects against discrimination based on religion or belief, disability, age and sexual orientation in employment and occupation.
• Directives 2006/54/EC, 2004/113/EC, 2010/41/EU and 79/7/EEC establish important aspects of gender equality.
• Article 157 TFEU protects equal pay for equal work or work of equal value.
• Directive 2023/970 strengthens pay transparency and enforcement.
• Disability equality includes the duty to provide reasonable accommodation, subject to the disproportionate-burden limitation.
• Positive action may be permitted where it addresses disadvantage and complies with proportionality requirements.
• Intersectional discrimination involves disadvantage arising from a combination of protected characteristics.
• EU directives establish procedural safeguards, including burden-of-proof rules, access to remedies and protection against victimisation.
• Directives 2024/1499 and 2024/1500 strengthen the independence and effectiveness of national equality bodies.
• The CJEU has played a decisive role in developing the legal meaning and practical application of equality rights.

21. Frequently Asked Questions

1. What is the legal basis of non-discrimination in the European Union?

The principal legal foundations are Article 2 TEU, Article 10 TFEU, Article 19 TFEU and Articles 20 and 21 of the Charter of Fundamental Rights. Additional provisions address specific forms of equality, particularly Article 157 TFEU on equal pay.

2. Which grounds of discrimination are expressly covered by Article 19 TFEU?

Article 19(1) TFEU identifies sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation.

3. Does EU law prohibit discrimination based on nationality?

Yes, within the scope of the Treaties. Article 18 TFEU provides a general prohibition, while Article 45 TFEU specifically protects workers exercising free movement rights. More detailed protection is provided by EU citizenship and free movement legislation.

4. What is the difference between direct and indirect discrimination?

Direct discrimination occurs where a person receives less favourable treatment because of a protected characteristic. Indirect discrimination occurs where an apparently neutral rule places persons sharing a protected characteristic at a particular disadvantage and cannot be objectively justified.

5. Is every difference in treatment unlawful under EU equality law?

No. Some distinctions may be justified under specific legal provisions. For example, certain age-related differences in employment may be permissible if they pursue a legitimate objective through appropriate and necessary means. Other exceptions, such as genuine occupational requirements, are interpreted narrowly.

6. Does EU law require employers to provide reasonable accommodation for persons with disabilities?

Yes. Directive 2000/78/EC requires employers to provide appropriate measures enabling persons with disabilities to access, participate in or advance in employment, unless the measures would impose a disproportionate burden.

7. Can an individual claim discrimination without proving discriminatory intention?

Yes. Discriminatory intention is not generally a necessary element of a claim. The legal assessment focuses on the treatment, its connection with a protected ground and the requirements of the applicable legal test.

8. What is positive action?

Positive action refers to measures intended to prevent or compensate for disadvantages experienced by particular groups. EU law permits certain positive measures, particularly in the field of gender equality, provided that they comply with the applicable legal conditions and proportionality requirements.

9. What is the burden of proof in an EU discrimination case?

Under the relevant equality directives, once the claimant establishes facts from which discrimination may be presumed, the respondent must prove that the principle of equal treatment has not been breached. The claimant must first establish sufficient supporting facts.

10. Can an employer be responsible for discriminatory recruitment statements?

Yes. In Feryn, the CJEU held that public statements expressing an intention not to recruit persons of a particular racial or ethnic origin could constitute direct discrimination, even without an identified individual applicant.

11. Does the Charter apply to every national discrimination dispute?

No. Under Article 51, the Charter binds Member States when they are implementing EU law or otherwise acting within its scope. A purely domestic dispute may fall outside the Charter, although national constitutional and statutory protections may still apply.

12. What is the purpose of the EU Pay Transparency Directive?

Directive 2023/970 strengthens equal-pay enforcement by requiring greater transparency in recruitment and remuneration, providing workers with rights to pay information and establishing reporting and enforcement mechanisms.

13. Are all forms of discrimination covered equally across employment, education and public services?

No. The scope differs according to the protected ground and the applicable directive. Racial or ethnic discrimination receives broad protection across several areas, while religion, disability, age and sexual orientation are principally covered by Directive 2000/78/EC in employment and occupation.

14. What are equality bodies?

Equality bodies are national institutions designated to promote equal treatment, assist victims, provide information and support the enforcement of anti-discrimination legislation. Directives 2024/1499 and 2024/1500 establish minimum standards intended to strengthen their independence and effectiveness.

22. Conclusion

Equality and non-discrimination are fundamental components of the European Union’s constitutional order. Their legal significance extends beyond the prohibition of explicit discriminatory conduct. They influence the structure of legislation, the organisation of employment relationships, the provision of public services and the exercise of institutional authority.

The EU framework combines broad constitutional principles with detailed legislative protections. Article 2 TEU establishes equality as a foundational value, Article 19 TFEU provides a basis for legislative action, and the Charter recognises equality before the law and non-discrimination as fundamental rights. The directives translate these principles into enforceable requirements across specific areas of social and economic life.

The development of EU equality law also demonstrates that formal equality is not always sufficient. An apparently neutral rule may produce discriminatory effects, and an identical treatment requirement may disadvantage individuals who need reasonable accommodation. Positive action, indirect-discrimination analysis and the recognition of intersectional disadvantage reflect a more substantive understanding of equality.

The CJEU has been central to this development. Through its judgments, it has transformed Treaty commitments into enforceable legal principles, clarified the meaning of discrimination and established important safeguards for individuals.

Nevertheless, the framework remains fragmented. Different protected grounds receive different levels of legislative protection across employment, education, social protection and access to services. The absence of a comprehensive horizontal Equal Treatment Directive remains a significant limitation of the existing EU system.

The continuing development of pay transparency requirements and stronger equality bodies demonstrates that effective equality depends not only on recognising rights but also on making them practically enforceable.

Ultimately, the principle of non-discrimination expresses a fundamental requirement of the European legal order: individuals must not be denied equal legal protection or meaningful opportunities because of characteristics unrelated to their rights, capacities or the legitimate requirements of a particular activity. Equality is therefore both a fundamental right and an essential condition for the functioning of a democratic, rights-based Union.

23. Primary Legal Sources and Further Reading

EU Treaties and fundamental-rights instruments

1. Article 2 TEU — equality as a foundational value of the European Union.
2. Article 3 TEU — the Union’s objectives, including combating discrimination and promoting equality.
3. Article 10 TFEU — integration of anti-discrimination objectives into EU policies.
4. Article 18 TFEU — prohibition of discrimination based on nationality within the scope of the Treaties.
5. Article 19 TFEU — legal basis for EU measures combating discrimination.
6. Article 157 TFEU — equal pay for male and female workers.
7. Charter of Fundamental Rights of the European Union — Articles 20, 21 and 23 on equality and non-discrimination.

Principal EU equality directives

8. Directive 2000/43/EC — equal treatment irrespective of racial or ethnic origin.
9. Directive 2000/78/EC — equal treatment in employment and occupation.
10. Directive 2004/113/EC — equal treatment between women and men in access to and supply of goods and services.
11. Directive 2006/54/EC — equal opportunities and equal treatment between women and men in employment and occupation.
12. Directive 2010/41/EU — equal treatment of men and women engaged in self-employed activities.
13. Directive 79/7/EEC — equal treatment between men and women in statutory social security.
14. Directive (EU) 2023/970 — pay transparency and enforcement of equal pay.
15. Directive (EU) 2024/1499 — standards for equality bodies in specified fields of non-discrimination.
16. Directive (EU) 2024/1500 — standards for equality bodies in the field of gender equality in employment and occupation.

Important CJEU judgments

17. Defrenne v Sabena, Case 43/75 — direct effect of the equal-pay principle.
18. Bilka-Kaufhaus, Case 170/84 — indirect sex discrimination and objective justification.
19. Kalanke, Case C-450/93 — limits on positive action.
20. Marschall, Case C-409/95 — permissible positive action and individual assessment.
21. Mangold, Case C-144/04 — the general principle prohibiting age discrimination.
22. Kücükdeveci, Case C-555/07 — age equality, primacy and national judicial obligations.
23. Feryn, Case C-54/07 — discriminatory recruitment statements.
24. Coleman, Case C-303/06 — discrimination by association in disability-related cases.
25. CHEZ, Case C-83/14 — indirect discrimination and ethnic origin.
26. Egenberger, Case C-414/16 — religious occupational requirements and judicial review.
27. HK Danmark, Joined Cases C-335/11 and C-337/11 — disability, reasonable accommodation and employment.
28. Association belge des Consommateurs Test-Achats, Case C-236/09 — sex-based actuarial factors in insurance.

Institutional and research resources

29. European Commission: Acting Against Discrimination — overview of EU anti-discrimination legislation and policy.
30. European Commission: EU Action on Equal Pay — developments in equal-pay enforcement and pay transparency.
31. European Union Agency for Fundamental Rights: Handbook on European Non-Discrimination Law — detailed comparative analysis of EU and European Convention non-discrimination law.
32. Court of Justice of the European Union: CURIA — official database of judgments, opinions and judicial documents.